The newsletter of the ISBA’s Standing Committee on Government Lawyers
Does a public employee have a right to closed meeting minutes of the discussion of her employment? A case review of Wisconsin Appellate Court case Sands v. Whitnall School District
Although we do not typically see a discussion of cases from other states in the Government Lawyers’ newsletter, a recent decision from Wisconsin raises an interesting question. In Sands v. Whitnall School District, 728 N.W.2d 15 (Wis. App. 2006), the Wisconsin Court of Appeals, First District addressed whether a public employee has a right to obtain copies of minutes of a closed session discussing her employment.
Barbara Sands, the Plaintiff, was hired by the Whitnall School District as the supervisor/facilitator of the District’s Gifted and Talented Education Program. She had a one-year contract with the District, which was not renewed. Prior to informing Sands of its decision not to renew her contract, the school board met in closed session twice and discussed Sands’ employment with the District. Subsequently, the board met in an open session and voted not to offer Sands a contract for the next school year. (These meetings were procedurally compliant with the open meeting requirements—this was not a question before the court.)
About two years after Sands was informed that her contract would not be renewed, she filed suit against the District alleging that the District failed to comply with Wisconsin’s statute requiring notice of the decision not to renew certain types of contracts. As part of the litigation, discovery was undertaken and Sands’ discovery requests included interrogatories seeking the identity of the individuals at the closed session meeting where Sands’ contract was reviewed and: (1) the substance of each person’s knowledge of the decision not to renew her contract; (2) the identity of each person who spoke during the deliberations that resulted in the board’s decision not to renew the contract; and (3) the substance of what each person said about renewing Sands’ contract. The District’s response to the interrogatories stated that the deliberations regarding Sands occurred in closed session, were privileged, and were not subject to discovery pursuant to the exemptions in Wisconsin’s open meetings statutes. See Wis. Stat. §19.85(a)(c) (2001-02).
Sands’ motion to compel answers to these interrogatories was granted. The District appealed the ruling. The issue on appeal was “whether Sands is entitled to the content of the closed sessions” in response to discovery request.
The Court’s Opinion2
The Wisconsin Appellate Court concluded that Sands was not entitled to the disclosure of the substance of the discussions held in closed session. Based on Section 19.85 of the Wisconsin Statutes, the court determined that the legislature intended for the substance of closed session discussions to remain protected from public disclosure. Accordingly, the discussions held in the closed sessions were not discoverable.
Section 19.85 provides, in pertinent part:
Exemptions. (1) Any meeting of a government body, upon motion duly made and carried, may be convened in closed session under one or more of the exemptions provided in this section . . . . A closed session may be held for any of the following purposes:
* * *
(c) Considering employment, promotion, compensation or performance evaluation data of any public employee over which the governmental body has jurisdiction or exercises responsibility.
The court recognized that the plain language of the statute contemplates that certain discussions of a public body are to be “shielded from the public.” Specifically, the statute contained no exceptions to the non-disclosure principle, including no exception for “litigation or any other circumstance.”
In supporting its decision, the court recognized that one policy reason for allowing closed sessions to discuss certain matters is to allow candid discussion by the members without concern that their discussions will be disclosed. Such candid discussion is a necessary part of the decision making process of governmental agencies. The court also noted that to require disclosure of closed session minutes for litigation could render the exception meaningless with the filing of a lawsuit, the result of which would be to defeat the purpose of the law enacted by the legislature.
Sands countered that Section 19.85(1)(b), which also allows closed sessions for the consideration of the dismissal of a public employee, required notice to the employee prior to dismissal so that an evidentiary hearing could be held, upon the request of the employee, in open session. The court rejected this argument, mainly upon the determination that the closed session was held pursuant to subsection (c), not (b), and that subsection (b) only applies if the government conducts an evidentiary hearing; no evidentiary hearing was held with respect to Sands’ employment with the District. The court dismissed this argument summarily stating that because no evidentiary hearing was conducted, Sands did not have a right to request that the board conduct the sessions openly.
Finally, the court rejected Sands’ request to create a limited exception to the open meetings law when the subject of the discussion files a lawsuit alleging wrongdoing on the part of the District. The court simply stated that it is not in a position to make such an exception, that this is the province of the legislature.
Discussion and a Look at Illinois Law Considerations
The Sands case raises an interesting question about an employee’s right to obtain closed session minutes through discovery. To this author’s knowledge, the issue has not been addressed by the Illinois courts. Although this section will discuss Illinois law in the context of the Sands scenario, as any attorney will understand, it is never possible to predict how an Illinois court might rule on a similar issue. It is the intent of this section of the article to raise some points for consideration, not necessarily to answer them, but to identify potential issues and arguments.
One of the primary concerns of the Sands court was protecting the discussions held in the closed session. The court specifically stated “The legislature recognized that a governmental body’s right to meet in closed session and maintain the confidentiality of its discussions on certain matters was paramount.” The court further discussed the policy reasons behind supporting a closed session to discuss personnel matters. Specifically, the court noted that the exception allowed the board members to conduct a candid discussion without concern that their discussions would be disclosed. The court agreed with the District’s argument that if disclosure were allowed, it would vitiate the need for the closed session at all. In this line of discussion, theSands court relied on the United States Supreme Court case, N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132 (1975). Interestingly, the N.L.R.B. case involves information sought pursuant to a request under the Freedom of Information Act, not the Open Meetings Act, and a person’s attempt to obtain interagency documents. See, N.L.R.B. v. Sears Roebuck & Co., 421 U.S. 132. The discussion centered on the meaning of “finality,” which would make an agency decision disclosable if it was final, and not disclosable if it was not, as it would reflect the thinking processes. See Id.3
The heavy reliance on the N.L.R.B. case is problematic in the open meetings context, as the available exemptions are different and the rationale for them is distinct. Even though both statutes recognize the protection of an employee’s privacy in their own way, under Illinois law there is no specific exemption under the Open Meetings Act protecting the deliberative process of the public body as is found in the Freedom of Information Act. The same is true of the Wisconsin statute upon which the Sands court based its decision. This is not to say that the Sands decision was improper, actually in this author’s opinion, it was properly decided and some of the court’s rationale would be applicable in Illinois as well.
The primary focus is, simply put, that a public body’s discussion of a specific employee is exempt from the Open Meetings Act and that there are no exceptions to this exemption. Specifically, the Illinois Open Meetings Act provides that the public body can hold a closed session to consider “appointment, employment, compensation, discipline, performance or dismissal of specific employees of the public body.” 5 ILCS 120/2(c)(1). Illinois courts have held that an employment discussion that is closed is not a violation of the Act. See Verticchio v. Divernon Community School Dist. No. 13, 198 Ill. App. 3d 202 (4th Dist. 1990).
It is important to keep in mind that section 2(c)(1) of the Illinois Open Meetings Act does not require a session to be closed; it gives the public body the ability to hold such discussion behind closed doors. But, the decision is left to the public body. Nowhere in the Open Meetings Act is there a basis to go into closed session to protect the public body’s deliberative process. But, there is no rationale given in the Act for the various exceptions. We can make certain assumptions based on the specific exemption. For example, in real estate purchases and sales, the presumption is that the public body should not be at a disadvantage in negotiating because it is required to discuss the public body’s position on what it is willing to pay or sell property for in an open meeting; in litigation discussions, the public body should not be placed at a disadvantage at trial by discussing trial strategy or settlement figures in an open meeting. Similarly, when it comes to discussion of employees, there is the presumption that simply because someone is a public employee it should not mean that the discussion of his or her job performance needs to be public knowledge. But, simply because this is the presumed exemption does not mean that the court cannot also recognize that as an employer a public body will more freely discuss a personnel issue if it knows that the discussion will be kept behind closed doors.
One Illinois case that discusses the interplay of the Open Meetings Act and the Freedom of Information Act is Copley Press v. Board of Education of Peoria School Dist. No. 150, 359 Ill. App. 3d 321 (3d Dist. 2005). In Copley Press, the newspaper submitted a Freedom of Information Act request for the personnel file of the school superintendent who was put on administrative leave and eventually terminated through a contract buy out. The personnel file contained the letter sent to the superintendent explaining the reasons for dismissal and the superintendent’s performance evaluations. The appellate court held that the documents were exempt from the Freedom of Information Act as part of the personnel file. The court also noted the interplay of the Freedom of Information Act and the Open Meetings Act, finding that the two statutes should be construed together. In so holding, the court concluded that a closed session was properly held to discuss the employment of the school superintendent and when such was put into writing and placed in the employee’s personnel file, it was not intended to waive the exemption under the Open Meetings Act. The court recognized that to hold otherwise, and allow minutes from the closed session to be subject to the Freedom of Information Act, would essentially nullify the exception to the Open Meetings Act. The court further indicated that the statutes should not be read so as to be inconsistent with each other, but rather the Open Meetings Act and the Freedom of Information Act should be read “consistently and harmoniously.” Id. at 325.
There is no discussion in Illinois case law regarding who can and who cannot obtain closed session minutes. Rather, the cases center on whether the closed session was appropriate. If the closed session was appropriate and the need for confidentiality exits, then the minutes should not be subject to public inspection. Further, as discussed in the Sands case, there is no specific provision allowing closed session minutes to be made public for litigation or at the employee’s request. As a result, it is the public body that determines whether the minutes should remain closed. Finally, the Illinois Freedom of Information Act may affect this analysis, as under that Act an employee can waive the privacy exception by consenting to disclosure in writing. See 5 ILCS 140/7(b). No similar language is found in the Open Meetings Act. However, I would proceed with caution, as a court reading the Copley Press case could impute this exception waiver from the Freedom of Information Act into the Open Meetings Act in order to read the two statutes “consistently and harmoniously.”
One final thought on relevance in the discovery context: When determining whether to terminate certain employees, the public body, as a whole, makes the decision. In such cases, the thoughts or statements of one particular board member may not be relevant to litigation challenging a decision to terminate, as it was not the decision of that particular board member alone, but the decision of the “public body” that resulted in the termination.
In sum, as this section was prefaced, there is no way to foresee how an Illinois court might rule on a discovery request for closed session minutes. At a minimum, hopefully this article provided a little food for thought.
An employee’s right to obtain closed session meeting minutes discussing his or her employment is not a question that has been fully analyzed in Illinois case law. However, if a public body properly goes into closed session, there is an argument to be made that the minutes of such session should remain closed, even if it is the terminated employee who is seeking to obtain a copy of the closed session minutes.